Citation NR: 9608119
Decision Date: 03/26/96 Archive Date: 04/10/96
DOCKET NO. 94-01 803 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Seattle,
Washington
THE ISSUE
Entitlement to an effective date prior to December 4, 1991
for an award of service connection for fracture of the left
wrist with degenerative changes.
REPRESENTATION
Appellant represented by: Washington Department of
Veterans Affairs
WITNESSES AT HEARING ON APPEAL
Appellant and his wife
ATTORNEY FOR THE BOARD
Amanda Blackmon, Associate Counsel
INTRODUCTION
The appellant served on active duty from June 1985 to June
11, 1988.
This matter comes before the Board of Veteran’s Appeals
(Board) on appeal from a February 1992 rating decision by the
Department of Veterans Affairs (VA) Regional Office (RO).
CONTENTIONS OF APPELLANT ON APPEAL
The appellant contends that the RO erred in not granting the
benefit sought on appeal. He maintains, in essence, that a
claim for VA benefits was filed by him during 1988 and,
therefore, an earlier effective date for his service
connected disability is warranted.
DECISION OF THE BOARD
The Board, in accordance with the provisions of 38 U.S.C.A.
§ 7104 (West 1991 & Supp. 1995), has reviewed and considered
all of the evidence and material of record in the appellant's
claims file. Based on its review of the relevant evidence in
this matter, and for the following reasons and bases, it is
the decision of the Board that the preponderance of the
evidence is against the appellant’s claim for an effective
date prior to December 1991.
FINDINGS OF FACT
1. All available, relevant evidence necessary for an
equitable disposition of the appellant’s appeal has been
obtained by the RO.
2. The appellant submitted a formal claim for service
connection for a left wrist disability on December 4, 1991;
the form contained a section asking him if he had ever
previously filed a claim for any benefit with the VA; the
appellant checked the block “none.”
3. A February 1992 rating decision granted entitlement to
service connection for a fracture of the left wrist with
degenerative changes, effective December 4, 1991.
4. VA outpatient treatment reports, dated in 1988, fail to
establish that the appellant filed a claim for service
connection for a left wrist disability earlier than December
4, 1991.
CONCLUSION OF LAW
The criteria for an effective date prior to December 4, 1991
for an award of service connection for fracture of the left
wrist with degenerative changes have not been met. 38
U.S.C.A. §§ 5107, 5110 (West 1991); 38 C.F.R. §§ 3.151,
3.155, 3.400 (1995).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
Initially, the Board has found that the appellant’s claim for
entitlement to an effective date prior to December 4, 1991 is
well grounded within the meaning of 38 U.S.C.A. § 5107 in
that his claim is plausible, that is meritorious on its own
or capable of substantiation. Murphy v. Derwinski, 1
Vet.App. 78 (1990). This finding is predicated upon the
appellant’s evidentiary assertions and VA records which
reflect outpatient medical treatment for his service-
connected condition in 1988. Once it has been determined
that a claim is well grounded, VA has a statutory duty to
assist the appellant in the development of evidence pertinent
to that claim. 38 U.S.C.A. § 5107.
In this regard, this issue was previously before the Board in
December 1995 at which time the case was remanded by the
Board to the RO in an attempt to obtain additional evidence,
namely evidence of a claims application filed by the
appellant in June or July 1988. A review of the claims
folder indicates that an additional records search was
conducted at the Chicago VARO. A reply letter, dated in
February 1996, reflects that no further records were located.
That action having been completed, the case has now been
returned to the Board for further appellate consideration.
The Board is satisfied that all relevant and available
evidence is of record and the statutory duty to assist the
appellant in the development of evidence pertinent to his
claim has been met.
The evidence of record reflects that the appellant first
submitted a VA Form 21-526, Veteran’s Application For
Compensation Or Pension, for service connection for a
fracture of the left wrist with degenerative changes on
December 4, 1991. In February 1992, the RO granted service
connection for the claimed left wrist disability effective
from December 4, 1991.
The appellant contends that the effective date for
entitlement to service connection for a fracture of the left
wrist with degenerative changes is prior to December 4, 1991.
In that context, he asserts that an earlier application for
compensation benefits was filed in June or July 1988,
proximate to the dates of treatment he received for his
service-connected disability at a VA medical facility,
located in Chicago, Illinois.
The effective date for the appellant’s claim is governed by
38 U.S.C.A. § 5110(a) which provides, in pertinent part,
that unless specifically provided otherwise, the effective
date of an award based on an original claim, a claim reopened
after final adjudication, or a claim for increase, of
compensation, dependency and indemnity compensation, or
pension, shall be fixed in accordance with the facts found,
but shall not be earlier than the date of the receipt of the
application therefor. 38 U.S.C.A. § 5110(a). Subsection
(b)(1) further provides that:
The effective date of an award of disability
compensation to a veteran shall be the day
following the date of discharge or release if
application therefor is received within one
year from such date of discharge or release.
In addition, with respect to claims, 38 C.F.R. § 3.155(a)
provides that:
Any communication or action, indicating an
intent to apply for one or more benefits
under the laws administered by the Department
of Veterans Affairs, from a claimant, his or
her duly authorized representative, a Member
of Congress, or some person acting as next
friend of a claimant who is not sui juris may
be considered an informal claim. Such
informal claim must identify the benefit
sought.
A review of the record reflects that the appellant filed a
claim for VA compensation benefits for a left wrist
disability on December 4, 1991. He noted that his left wrist
disability began in 1986 and indicated that he received
treatment for his condition during service. The appellant
did not provide information concerning treatment he received
for this disability following his release from active duty.
The form contained a section that specifically asked the
appellant to report whether he had previously filed a claim
for any benefit with VA; in response to that direct inquiry,
the appellant check the block marked “none.”
The appellant was afforded a VA examination in conjunction
with his claim in January 1992. He was thereafter granted
service connection for his left wrist disability for which a
rating evaluation of ten percent was assigned, effective
December 4, 1991.
In correspondence, dated in October 1992, the appellant
recounts that he sustained an injury to his left wrist during
service. He also notes his treatment history, to include
various surgical procedures conducted during service. The
appellant indicates that while awaiting a medical examination
in connection with a medical board review, the expiration of
his term of service (ETS) date was advanced from September 4,
1988 to June 4, 1988. The pending medical board review
reportedly was not conducted as a result of this change. He
states that he was provided with copies of his medical
records and advised to “give [them] to the nearest VA
hospital, nearest [his] hometown in order to start [his]
disability for [his] injury.” The appellant reports that he
went to the VA facility located in Chicago, Illinois
following his release from service in 1988. There he
reportedly submitted copies of his medical records, and a
claims representative assisted him in completing an
application for compensation benefits. The appellant
indicates that he thereafter registered at the VA hospital
and was issued a medical card. He notes that the “medical
card was not useful for x-rays or operation for [his] wrist
pending [his] disability” claim determination. The appellant
indicated that he was to be contacted later regarding his
claim, but did not receive any information. In that regard,
he noted “nothing became of that,” so he “filed again
approximately a year later at the same office.” The
appellant later transferred jurisdiction of this case to the
RO located in Seattle, Washington, where he reports that he
filed a compensation claim at the VA facility in Olympia,
Washington. The appellant indicated that when seen at the
medical facility in Washington, he was provided with a new
medical card. It is the appellant’s contention that he
properly executed and filed an application for compensation
benefits. Further, it is his contention that his claim was
initially filed in 1988, and that the “responsibility was on
the VA [representative] to process the claim,” rather than
his responsibility to “continually file.” He maintains that
the effective date for his service-connected left wrist
disability is appropriately in 1988, when he sought to file a
claim in the Chicago VARO.
In October 1992, the Seattle RO inquired of the Chicago VA
medical center regarding any outpatient medical reports
pertaining to treatment the appellant received from June 12,
1988 to the date of the request, and requested a search for
any compensation application of record filed during 1988. In
November 1992, the Chicago VAMC responded to the inquiry for
records. Clinical records, dated from July 1988 to November
1988, reflect medical treatment the appellant received for
complaints of symptoms associated with his left wrist. Of
record is an application for ambulatory medical care, VA Form
10-60 (537), dated July 5, 1988, which indicates that the
appellant was seen on an emergency basis for treatment for
his left wrist. A notation on this form indicates that the
condition for which the appellant was clinically evaluated is
not service-connected. Also of record is a radiographic
report of x-ray studies conducted on the left wrist on that
same date. He apparently received follow-up treatment for
his left wrist condition on November 21, 1988. Another
clinical report notes that the appellant’s next outpatient
appointment date, and reflects that a prescription was issued
to the appellant. The VAMC noted that there was no record of
hospitalization, and that the referenced reports constituted
its entire medical file for the appellant. It was suggested
that the Seattle RO inquire of the Chicago VARO regarding
information concerning a compensation application.
Correspondence from the Chicago VARO, dated in November 1992,
indicates that no additional records relative to the
appellant were on file at that facility. In the absence of
evidence demonstrating submission of a compensation claim
prior to December 4, 1991, the RO confirmed its previous
determination with regard to the effective date for the award
of service connection for a left wrist disability in November
1992.
In his substantive appeal, dated in December 1992, the
appellant recounts that he was unable to undergo a medical
board evaluation due to the advancement of his separation
date. He indicates that an application for compensation
benefits for his left wrist disability were properly filed
with the Chicago VARO following his release from service in
1988.
During a March 1993 hearing, the appellant and his wife
testified that he completed an application for compensation
benefits in either June or July 1988, at a VA facility
located in Chicago, Illinois. He noted that an application
for compensation benefits was submitted prior to his having
sought treatment at the VA medical facility. The appellant
testified that he was assisted in completing his application
by a VA counselor, who also reportedly told him that his left
wrist disability would warrant a minimum rating evaluation.
The appellant indicated that he utilized his mother’s address
on the compensation application, as he was residing with her
at that time. Subsequent to the submission of this
application, the appellant relocated to Arizona. He did not
provide the Chicago VARO with a change of address, opting
instead to have his mother forward correspondence to him. He
stated that no correspondence was forwarded to him from the
Chicago VARO via his mother’s address. The only addresses
of record on file for the appellant have been his Chicago and
Washington addresses. The appellant’s representative argued
that an earlier effective date should be granted based upon
the continuity of what occurred and by what has been
substantiated by the record. Alternatively, the
representative requested that the appellant’s July and
November 1988 visits to the VAMC be construed as informal
claims, in the absence of evidence concerning the
compensation application the appellant contends was filed in
1988.
In September 1993, the hearing officer affirmed the previous
rating determination which denied entitlement to an earlier
effective date for the award of service connection for the
left wrist disability on the basis that the evidence did not
demonstrate that a claim for compensation was filed prior to
December 4, 1991.
As indicated, this matter was remanded by the Board in
December 1995 for further evidentiary development.
Specifically, the RO was directed to conduct a search for any
claims application which may have been filed by the appellant
in addition to any duplicative files which may have been
created. In January 1996, the RO made an inquiry for
records of the Chicago VARO in accordance with the directives
of the December 1995 remand. Correspondence, dated in
February 1996, forwarded in reply to this inquiry noted:
This will serve to advise that a search was
made of our files with regard to [the
appellant]. We have no records here,
including a duplicate file.
The Board has carefully and thoroughly reviewed the record,
including the clinical records reflecting treatment sought by
the appellant for his left wrist disability in July and
November 1988. However, there is no evidence that the
appellant filed a claim for service connection for a left
wrist disability prior to December 4, 1991.
The RO has twice undertaken a search of not only the Chicago
VARO, but the medical facility in order to determine whether
any record exists which would substantiate the subject claim.
Of record are clinical reports which reflect that the
appellant received treatment for his left wrist disability in
July and November 1988. Notwithstanding, there is no
indication that a claim for compensation was filed or pending
during the appellant’s initial visit or follow-up visit for
his left wrist disability. The application for ambulatory
medical care, dated in July 1988, reflects that the
disability for which treatment was sought was not service-
connected, and does not reference any pending claim.
Moreover, the Board finds the fact that the veteran
specifically denied having filed a prior claim at the time of
his December 1991 application for benefits to be entitled to
by far the greatest probative weight on the question of
whether there was in fact some prior claim that VA can not
now locate. In view of this compelling evidence, and in
light of the fact that exhaustive searches have failed to
uncover any evidence compatible with the filing of an
application for benefits prior to December 4, 1991, an
earlier effective date is not warranted.
The appellant’s representative asserts that the clinical
records reflecting visits to the Chicago VAMC should have
been considered an informal claim for compensation benefits
inasmuch as these records reflect treatment for the left
wrist disability for which entitlement to service connection
was subsequently granted. This contention is apparently
premised upon 38 C.F.R. § 3.157(b)(1) (1995), which provides
for the receipt of a report of examination or hospitalization
as an informal claim. However, this provision is applicable
under circumstances where a formal claim has previously been
allowed or disallowed. In this case, no formal claim had
been previously allowed and no formal claim for compensation
had been disallowed for the reason that the service-connected
disability was not compensable in degree. Accordingly, this
provision is not applicable to the circumstances of this
case, involving an original claim. Moreover, the Board is of
the opinion that there is no evidence within the record,
inclusive of the July and November 1988 clinical records,
that indicates any intent on the part of the appellant to
apply for benefits or in any way specifically identifies the
“benefit sought,” i.e., service connection for a left wrist
disability as required by 38 C.F.R. § 3.155(a). See, KL v.
Brown, 5 Vet.App. 205 (1993).
In summary, the appellant had active duty from June 1985 to
June 1988. His first claim for entitlement to service
connection for a left wrist disability was received by the RO
on December 4, 1991, which is well beyond one year after his
date of separation from active duty. The Board finds no
document or evidence, including the July and November 1988
clinical records, on file that can be construed as an
informal claim for service connection for a left wrist
disability prior to December 4, 1991. See, 38 C.F.R.
§ 3.155. Evidence of treatment for a left wrist disability
prior to December 4, 1991, is not a basis for granting
service connection from an earlier date. Accordingly, under
applicable regulations, an effective date for the grant of
service connection for fracture of the left wrist with
degenerative changes, prior to December 4, 1991, is not
warranted.
ORDER
Entitlement to an effective date earlier than December 4,
1991, for the grant of service connection for fracture of the
left wrist with degenerative changes, is denied.
RICHARD B. FRANK
Member, Board of Veterans' Appeals
The Board of Veterans' Appeals Administrative Procedures
Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, 741
(1994), permits a proceeding instituted before the Board to
be assigned to an individual member of the Board for a
determination. This proceeding has been assigned to an
individual member of the Board.
NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West
1991 & Supp. 1995), a decision of the Board of Veterans'
Appeals granting less than the complete benefit, or benefits,
sought on appeal is appealable to the United States Court of
Veterans Appeals within 120 days from the date of mailing of
notice of the decision, provided that a Notice of
Disagreement concerning an issue which was before the Board
was filed with the agency of original jurisdiction on or
after November 18, 1988. Veterans' Judicial Review Act,
Pub. L. No. 100-687, § 402, 102 Stat. 4105, 4122 (1988). The
date which appears on the face of this decision constitutes
the date of mailing and the copy of this decision which you
have received is your notice of the action taken on your
appeal by the Board of Veterans' Appeals.
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